STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

ARNOLD THOMAS, Employee

STERLING PRODUCTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06604265MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The department issued an initial determination that found in week 20 of 2006, the employee was discharged, but that his discharge was not for misconduct connected with his work. The employer appealed and on July 25, 2006, the department mailed the employee a hearing notice informing him that a hearing was to be held on Monday, July 31, at 2:45 p.m. at the State Office Building. The employee failed to appear. However, the employer, who is the appellant, appeared, so a hearing was held. On August 4, 2006, the ALJ who held the hearing issued an appeal tribunal decision that reversed the initial determination and found that the employee was discharged for misconduct connected with his work. The employee filed a timely petition for commission review, explaining why he was unable to appear at the hearing.

On October 27, 2006, the commission issued an order remanding this matter to the department for a hearing on the issue of whether the employee had good cause for the failure to appear. That hearing was held on December 12, 2006.

Therefore, the issue that must be resolved is whether the employee had good cause for failing to appear at the July 31, 2006, hearing.

The employee lives in a duplex, which, at the time the hearing notice was mailed to him, had only one mailbox. The downstairs tenant, not the employee, received all of the mail. The employee had made arrangements to pick up his mail from this tenant. However, other people lived with the downstairs tenant, and they would sometimes misplace the mail. This problem had been resolved by the time of the hearing as the landlord had installed another mailbox for the employee. The downstairs tenant told the employee that more than one person had been handling the mail, and the downstairs tenant finally gave the employee his hearing notice sometime in October.

The employee was living in a situation in which it was impossible for him to obtain sole control over his mail. The employee had made arrangements with the downstairs tenant so that the employee could obtain his mail. However, other people over whom the employee had no control were in the position of handling his mail, and one of those individuals misplaced the employee's hearing notice. This was not the fault of the employee. Further, the situation with the employee's mail had been resolved by the time of the October hearing.

The commission therefore finds that the employee/appellant failed to appear at a hearing scheduled for July 31, 2006, but that such failure was with good cause within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee/respondent's request for hearing is not dismissed. This matter is remanded to the hearing office for a hearing and decision on the merits of the case.

Dated and mailed December 27, 2006
thomaar2 . urr : 145 : 1 PC 712.1  PC 713

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The ALJ should also hold a hearing on whether the employer failed to provide complete and correct information to the department. In Whitmore v. Levy Restaurants at Lambeau Field (LIRC October 13, 2006) the commission determined that if a party appeals without specific reference to the employer fault issue, the commission will consider it to be an appeal of any and all findings adverse to that party, which is contrary to the ALJ's holding in the case at issue.


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